IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

JERMAINE L. PATTERSON, 

Petitioner, 

v. 

UNITED STATES OF AMERICA, 

Respondent. 

CASE NO. 2:12-CV-0817 

CRIM. NO. 2:10-CR-263(1) 

JUDGE MICHAEL H. WATSON 

Magistrate Judge Kemp 

OPINION AND ORDER 

On August 1, 2013, after conducting an evidentiary hearing, the Magistrate Judge issued 

a Report and Recommendation recommending that the instant motion to vacate, set aside or 

correct pursuant to 28 U.S.C. § 2255 sentence be denied. Petitioner has filed Objections to the 

Magistrate Judge's Report and Recommendation. For the reasons that follow, Petitioner's 

Objections, Doc. No. 92, are OVERRULED. The Report and Recommendation is ADOPTED 

and AFFIRMED. This action is hereby DISMISSED. 

Petitioner asserts he was denied effective assistance of counsel because his attorney failed 

to file an appeal after being requested to do so and failed to consult with him regarding the filing 

of a notice of appeal. After an evidentiary hearing on the issue, the Magistrate Judge 

recommended dismissal of Petitioner's claim of ineffective assistance of counsel on the merits. 

Petitioner objects to the Magistrate Judge's recommendation of dismissal of his claim of 

ineffective assistance of counsel on the merits. 

Petitioner argues that the Magistrate Judge incorrectly recommended dismissal of his 

claim on the merits based on the lack of any nonfrivolous grounds for an appeal. Petitioner 

argues that this issue is not determinative of his claim. Rather, he asserts that habeas relief is 

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warranted because it is without dispute that Petitioner provided his attorney grounds to believe 

that Petitioner was interested in filing of an appeal. 

"[E]very Court of Appeals that has addressed the issue has held that a lawyer's failure to 

appeal a judgment, in disregard of the defendant's request, is ineffective assistance of counsel 

regardless of whether the appeal would have been successful or not." Ludwig v. United States, 

162 F.3d 456,459 (6th Cir. 1998)(citing Castellanos v. United States, 26 F.3d 717,719 (7th Cir. 

1994); United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993); United States v. Horodner, 993 

F.2d 191, 195 (9th Cir. 1993); Bonneau v. United States, 961 F.2d 17,23 (1st Cir. 1992); United 

States v. Davis, 929 F.2d 554, 557 (lOth Cir. 1991); Williams v. Lockhart, 849 F.2d 1134, 1137 

n. 3 (8th Cir. 1988)). See also Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000)("[A] lawyer who 

disregards specific instructions from the defendant to file a notice of appeal acts in a manner that 

is professionally unreasonable")( citations omitted). When an attorney fails to file a requested 

appeal, the defendant is entitled to a new appeal without any showing that his appeal likely 

would have had merit. Id. (quoting Peguero v. United States, 526 U.S. 23, 28 (1999)). "This is 

so because a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel 

to file the necessary notice. Counsel's failure to do so cannot be considered a strategic decision; 

filing a notice of appeal is a purely ministerial task, and the failure to file reflects inattention to 

the defendant's wishes." Roe v. Flores-Ortega, 528 U.S. at 478. 

The Magistrate Judge concluded that Petitioner failed to demonstrate by a preponderance 

of evidence that he ever requested his attorney to file an appeal on his behalf. Report and 

Recommendation, PageiD #356. Petitioner does not object to this conclusion. Instead, 

Petitioner objects to the Magistrate Judge's recommendation that habeas relief also be denied 

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based on defense counsel's undisputed failure to consult with Petitioner regarding the filing of a 

notice of appeal. 

Where the defendant fails to convey one way or the other his wishes regarding the filing 

of an appeal, the United States Supreme Court has held that a defense attorney performs in a 

constitutionally ineffective manner by failing to consult with his client regarding the filing of an 

appeal as follows: 

[C]ounsel has a constitutionally imposed duty to consult with the 

defendant about an appeal when there is reason to think either (1) 

that a rational defendant would want to appeal (for example, 

because there are nonfrivolous grounds for appeal), or (2) that this 

particular defendant reasonably demonstrated to counsel that he 

was interested in appealing. In making this determination, courts 

must take into account all the information counsel knew or should 

have known .... Although not determinative, a highly relevant factor 

in this inquiry will be whether the conviction follows a trial or a 

guilty plea, both because a guilty plea reduces the scope of 

potentially appealable issues and because such a plea may indicate 

that the defendant seeks an end to judicial proceedings. Even in 

cases when the defendant pleads guilty, the court must consider 

such factors as whether the defendant received the sentence 

bargained for as part of the plea and whether the plea expressly 

reserved or waived some or all appeal rights. Only by considering 

all relevant factors in a given case can a court properly determine 

whether a rational defendant would have desired an appeal or that 

the particular defendant sufficiently demonstrated to counsel an 

interest in an appeal. 

*** 

We expect that courts evaluating the reasonableness of counsel's 

performance using the inquiry we have described will find, in the 

vast majority of cases, that counsel had a duty to consult with the 

defendant about an appeal. 

Roe v. Flares-Ortega, 528 U.S. at 480-481. 

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Petitioner argues that he demonstrated his interest in filing an appeal when family 

members "reached out" to discuss with Attorney Sherman available post-sentencing options. 

Objections, PageiD #367. Petitioner argues that, if Sherman did not know that Petitioner was 

interested in filing an appeal, it was because Sherman failed to return telephone calls or was 

unavailable. 

This Court is not persuaded by these arguments. As discussed by the Magistrate Judge, it 

is the Petitioner's burden to establish by a preponderance of the evidence that he reasonably 

demonstrated to defense counsel his interest in filing an appeal. The record in this case plainly 

fails to establish any nonfrivolous grounds for an appeal. See Report and Recommendation, 

PageiD #357-59. In view of the lack of any nonfrivolous grounds for an appeal and other facts 

of record, this Court cannot conclude that habeas relief is warranted. 

Petitioner was sentenced pursuant to the terms of his negotiated guilty plea agreement. 

Petitioner reviewed with his attorney the PreSentence Investigation Report prior to sentencing, 

which recommended that he be sentenced to a term of 240 months. Petitioner nonetheless states 

that he was surprised when the District Court imposed 175 months imprisonment, which 

sentence was well below that recommended by the PreSentence Investigation Report and below 

the recommended range under the United States Sentencing Guidelines. Although the Court 

advised Petitioner of his right to appeal and of the time period for doing so at sentencing, 

Petitioner did not indicate at that time or immediately thereafter that he was interested in filing 

an appeal. Petitioner knew of the time limit for filing an appeal, but never asked his attorney to 

file an appeal. He instead attempted to reach his attorney by sending letters and leaving 

messages requesting counsel to come and speak with him regarding the filing of an appeal. 

Petitioner acknowledged that his prior affidavit statement, in which he swore that he directed 

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defense counsel to file an appeal, was not true. His evidentiary hearing testimony on this issue is 

less than credit worthy. Attorney Sherman testified unequivocally that he never received any 

messages from Petitioner requesting that he consult with Petitioner regarding the filing of a 

notice of appeal. Had he received any such message, he would have discouraged Petitioner from 

filing an appeal, because if the case were remanded for re-sentencing, or Petitioner's sentence 

vacated, it could result in a greater sentence being imposed. He would have filed the notice of 

appeal, however, and withdrawn as appellate counsel, had Petitioner insisted on filing an appeal. 

The Court finds the representations of Attorney Sherman to be worthy of credit. Nothing in the 

record reflects that defense counsel failed to respond to messages left by Petitioner or was 

unavailable. Considering all of the circumstances in this case, as required under Roe v. FloresOrtega, the Court concludes that Petitioner has failed to establish he was denied effective 

assistance of counsel based on his attorney's failure to consult with him regarding the filing of an 

appeal. 

Petitioner's Objections, Doc. No. 92, therefore are OVERRULED. The Report and 

Recommendation is ADOPTED and AFFIRMED. This action is hereby DISMISSED. 

IT IS SO ORDERED. 

United 

~~JV~ States District Judge 

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